The Tennessee Waltz Around Gideon

The first step in the dance is to find someone with the veneer of respectability willing to take the lead. They found him, Bill Koch, who sat on the Tennessee Supreme Court before he took the job of dean at Nashville Law School. But it wasn’t enough that his judicial and academic glow would blind the critics. He also had to be able to dance, because that was the purpose of the Task Force he would lead.

“The Legislature is not going to pay money for the same old thing,” Koch said. “We haven’t, in the last 30 years, looked at (the process of providing legal services for the poor) holistically.”

The Task Force, from a state where shamelessness toward the 6th Amendment has become an official disgrace, was given a mandate: How to tweak around the edges of Gideon, the duty to provide effective assistance of counsel to the indigent, to create the appearance that they’re doing something.

If there is no political will to fulfill the constitutional mandate to the poor defendants of Tennessee by providing them competent representation, then let it be clear that this State cares more about money than the Constitution But that it seeks to put on a traveling show to create the appearance of caring, when it has no intention to put up the money needed to fix this disaster, is an insult to the judges, the lawyers and the indigent citizens of Tennessee…Adherence to the Constitution requires adequate funding. It isn’t satisfied by pretending to care. Either you will honor the Constitution by funding indigent defense, or you will fail the people of this State but you will no longer trick them by putting on a show.

Public defenders in Tennessee lack the staff to handle those in need. Private indigent defenders are told to wrap up murders in 58 hours. They work under 2000 hours-per-year caps, and still don’t get paid in, well, forever as the Administrative Office of the Court kicks the expense off to the next fiscal year, or maybe the next administration. It would be worse if they weren’t working for peanuts, $40 out of court, $50 in court.

So good lawyers won’t represent the indigent? Tennessee doesn’t give a damn, as there will always be those lawyers they scrape off the bottom of the barrel who will be their warm bodies to make defendants think they have representation.

But who cares? This isn’t about effective representation. This isn’t about fulfilling a constitutional mandate. This is about putting on a show to make it look like they care. And care they do, but it’s only about not spending money. Holistically.

Money is not the only problem with indigent defense in Tennessee, and there are always tweaks to the system that are worthy of consideration. But when a local public defender is ten lawyers short of the ability to provide something close to competent representation, there is no magic trick to fill the gap.

There is one significant flaw with the choice of Bill Koch as chair of the Task Force, and that is the fact that he, as a former Tennessee Supreme Court justice, as the current dean of Nashville Law School, can’t possibly be wholly unaware of what Gideon requires. He can’t be blind to the meaning of a warm body standing where the defense lawyer is supposed to stand. He can’t believe that murder cases can be defended within the 58 hour time Tennessee has established. He can’t believe that any competent lawyer can take on indigents at $40/$50 and do right by them.

That means Bill Koch knows he’s been put in charge of selling the big lie to the lawyers and people of his state. And not only did he take the gig, but he did so with knowledge that he would be in charge of a dog and pony show whose goal was to calm the locals while undermining the Constitution.

Refusing to be awed by Koch’s veneer of respectability, Seaton did what lawyers aren’t supposed to do when he spoke to the Task Force of important and respectable official members, charged with making the deprivation of constitutional rights look all holistic and shiny.

How can change in a grossly understaffed, underfunded system be achieved without spending money? That the question the Task Force sought to answer. I can help them with that. It can’t.

The indigent defense system in Tennessee has failed, to the official embarrassment of the state, which is why there is a Task Force comprised of lawyers and judges willing to dance. They waltz around the Constitution. They waltz around the poor who are denied effective assistance of counsel. They waltz around the lawyers who are asked to compensate for their state’s deliberate violation of the Constitution by working harder, working cheaper, working for free, and most of all, not mentioning in public that the Task Force is touring the state to sell a lie.

Chris Seaton refused to bow and scrape when Bill Koch got angry with him for doing what mere lawyers aren’t supposed to do, call out the state’s big names for enabling the lie that would perpetuate the denial of counsel to the poor while creating the appearance of fixing the problem. Holistically.

There’s little doubt that the Tennessee Legislature won’t put up the money necessary to fulfill its constitutional mandate. Koch made that clear. But just because he’s willing to waltz doesn’t mean the lawyers charged with zealously defending the poor of Tennessee, like Chris Seaton, are willing to dance to his tune. The Task Force is a sham, and no fancy footwork will change that.

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11 thoughts on “The Tennessee Waltz Around Gideon”

There is a clear way for the State to meet its Gideon obligations without spending any more money, and it’s one that’s always been open to it. Stop prosecuting the indigent for malum prohibitum crimes.

And a tummy-rub to Mr Seaton for telling them like it is, since legislatures have a track record of not reducing the statutory burden.

What a bargain! My company won’t even bill out our most junior developer who is still in high school to put together a WordPress site for under $50/hr. Who knew I could get a “constitutionally effective” murder defense at a lower hourly with fewer billable hours than a blog put together by a teenager with a crackling voice who still doesn’t (think) he has to shave.

Someone had to call bullshit, because no one else would. The meetings at each “listening tour” stop have been nothing but tummy rubs for those in power, with steady jobs, who don’t require court-appointed work to make ends meet. Each, including the Knoxville stop covered at Fault Lines, had people offering suggestions no member of the Task Force will ever consider.

All the while, people grumbled about how funding needed to be increased. They’d bitch on Facebook in their little groups, they’d complain to the Tennessee Bar Association, and they’d talk about “studies” showing better funding meant better defense. No one did a damn thing.

I made a few enemies recently. I don’t give a damn. If the “Task Force,” that hokey little medicine show fears me now enough for change to occur, then so be it. I’ll suffer the consequences.

And how telling is it that as soon as the meeting ended, after a room full of angry attorneys and citizens decried the Task Force’s “Listening Tour” as bullshit, the local crime beat reporter walks up to Bill Koch and Justice Lee, hands them a copy of the letter sent to me available for viewing at Fault Lines, and pointedly asks how the Task Force will get anything done?

Money isn’t the issue. If the state can appropriate enough to put “In God We Trust” stickers on every cop car in the state they can fund indigent defense. Tennessee just doesn’t give a damn.

Court dockets move much more smoothly when the defendants are all represented by a few overworked lawyers. Judges and prosecutors know that. Anyone who wants a public defender gets one, regardless of whether they are indigent, leaving less time, money and lawyers for the truly needy. There’s no downside for the judges or prosecutors, so there’s no incentive for them to scrutinize applicants.

But what if there were? What if we decided that anyone declared indigent couldn’t be ordered to pay fines, fees, court costs or restitution? (After all, they’re indigent, right?). Now, the judges and prosecutors have a reason to investigate whether someone is truly indigent. They don’t want their revenue stream eliminated. What good to them is a defendant who can’t be bled of cash for the next 12-60 months? More scrutiny of applicants would lead to smaller caseloads for public defenders and thus more time to spend with those defendants who truly need their help.

This is true in some place, not true in others, where defendants’ ability to pay is vetted. And in yet other places, indigent defendants are “charged” for their defense, such that it’s merely an advance and not a free defense. Even indigent defendants whose cases are dismissed are charged. Be careful about begging the question.

Even within your assumption, there are issues. Should defendant be denied counsel pending an investigation into their indigency? That would be a good way to keep costs down, but that would leave them exposed at crucial stages of the prosecution. Does the judge tell the indigent defendant jailed for a few months while they get around to checking the bona fides of his poverty, “sorry for the inconvenience”?

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Scott H. Greenfield

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